Response to Department of Justice Letter to Court

April 19, 2012
Via ECF
Margaret Carter, Esq.
Clerk of Court
U.S. Court of Appeals for the First Circuit
John Joseph Moakley United States Courthouse
One Courthouse Way, Suite 2500
Boston, Massachusetts 02210

Re: In Re: Request from the United Kingdom Pursuant to the Treaty Between the Government of the United States of America and the Government of the United Kingdom on Mutual Assistance in Criminal Matters in the Matter of Delours Price, Appeal Nos. 11-2511 and 12-1159

Dear Ms. Carter:

We write in response to the letter submitted by the Department of Justice (“DOJ”) dated April 16, 2012 concerning the above referenced matter. We could not find any provisions in the Federal Rules of Appellate Procedure or U.S. Court of Appeals for the First Circuit’s Rulebook which would permit the Department of Justice to make further submissions or communications once the Panel has risen following oral argument. However, in the best interests of our clients, we feel compelled to respond and request that you kindly bring this letter to the attention of the Panel.

It is our respectful submission that the DOJ’s letter merely confirms that the District Court’s denial of the Appellants’ motion to intervene prevented them from providing evidence that is essential to assessing their claims that the Government’s position poses a grave risk of physical harm to the Appellants and their families. The Appellants’ affidavits in support of their motion to intervene were not intended as a substitute for, or limitation of, the evidence they would have presented if granted the right to be heard. As just one example, the DOJ’s letter does not dispute that the Department of State made contact with Carrie Twomey, Mr. McIntyre’s wife regarding her family’s security. In fact, at Paragraph 9 of the Affidavit of Carrie Twomey (Appendix A240/A241), Ms. Twomey stated that Boston College had raised the threats against her family with the U.S. Department of State. The Appellants are ready, willing and able to provide evidence of those contacts, if the matter is remanded.

The DOJ’s implicit suggestion that it would have been able to rebut any evidence that the Appellants would have elicited before the District Court proves only that the proceedings below would have been categorically different if the Appellants had been permitted to intervene, and that Boston College did not adequately represent the Appellants’ interests.

Regardless of the outcome of this litigation, the DOJ’s insistence on downgrading the threats facing the Appellants provides them with cold comfort. Although the DOJ was unable to identify, on the record, police reports regarding threats to Mr. McIntyre and his family, the IRA factions are unlikely to telegraph advance notice of their plans for retaliation. Moreover, as is evident from the final sentence of the DOJ’s letter, the Government takes the remarkable position that, even if harm to the Appellants and their families is assured, the Appellants nevertheless lack sufficient interest to be heard in opposition to the subpoenas.

The Honorable Court—and clearly not the DOJ or Boston College—now represents the Appellants’ best hope to assure their safety.

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First Circuit Court of Appeals

May, 2013

“… we must forcefully conclude that preserving the judicial power to supervise the enforcement of subpoenas in the context of the present case, guarantees the preservation of a balance of powers… In substance, we rule that the enforcement of subpoenas is an inherent judicial function which, by virtue of the doctrine of separation of powers, cannot be constitutionally divested from the courts of the United States. Nothing in the text of the US-UK MLAT, or its legislative history, has been cited by the government to lead us to conclude that the courts of the United States have been divested of an inherent judicial role that is basic to our function as judges.”

“… the district court acted within its discretion in ordering their production, it abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.”

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